LOUISIANA v. N. A. A. C. P.

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Argument of William P.schuler

Chief Justice Earl Warren: Number 294, Louisiana ex rel. Jack P.F. Gremillion, Attorney General, et al., Appellants, versus N.A.A.C.P. et al.

Mr. Schuler.

Mr. William P.schuler: Mr. Chief Justice and Associate Justices.

The matter reached as this Court today on appeal from the Eastern District Court for the State of Louisiana.

A three-judge court in that proceeding held unconstitutional, two laws of the State of Louisiana and enjoined the enforcement of those statutes.

And so under the provisions of 28 U.S.C.1253, this matter was appealed directly to this Court.

Actually, this matter involves two separate lawsuits which were consolidated for trial in the court below.

The first lawsuit was filed in March of 1956 in the Nineteenth Judicial District State Court.

That suit was a suit by the former Attorney General which sought to enjoin the N.A.A.C.P. and its affiliates in doing business in the State because they had failed and neglected to file a membership and officer list which was required by statute of the State of Louisiana, passed in 1924.

This --

Chief Justice Earl Warren: 19 when?

Mr. William P.schuler: 1924.

Chief Justice Earl Warren: 1924.

Mr. William P.schuler: Now, this suit was filed on March 1st, 1956 and 28 days later, the defendants therein, the N.A.A.C.P. and various individuals went in the federal court and moved that the said suit be removed to the federal court.

The federal courts on the removal of the petition and the case remained pending or I should say dormant, on the docket of that court now.

In 1958, November thereof, there was a new suit filed in the Eastern District of the State of Louisiana by the New Orleans branch of the N.A.A.C.P. seeking to have the constitutionality of Act 20 -- Act 2 of 1924 and Act 260 of 1958, declared unconstitutional and have the enforcement thereof enjoined by the court.

These two cases were consolidated at the trial and heard by a three-judge court and the three-judge court rendered an opinion in February 29th of 1960, holding that these two statutes were unconstitutional.

The first statute that is the membership list statute on the basis that it conflicted with the First Amendment as interpreted by the N.A.A.C.P. versus Alabama and Bates versus Little Rock cases.

The second statute, a Communist affidavit statute, I -- they held it was in conflict with the Due Process Clause of United States Constitution and that it provided for a filing of something which would've be impossible to be within the knowledge of the persons required to file it.

Notice of appeal in this matter was filed in April 25th, 1960 and this Court noted the probable jurisdiction on the 24th day of October, 1960.

Actually, the primary question involved herein today, is a clash, conflict between the State's police power and between the provisions of the First Amendment of United States Constitution as interpreted by this Court.

The freedom of association doctrine, while never so --

Justice Felix Frankfurter: Would you -- I wonder if it troubles you, before you get in to the legal discussion of the State for some particularity.

What it is?

Mr. William P.schuler: When we (Voice Overlap)

Justice Felix Frankfurter: What it is with reference to which illegal doctrines have to be applied?

Mr. William P.schuler: I don't quite follow the question, Your Honor.

Justice Felix Frankfurter: What are the facts of this case?

Are there any facts or just an abstract legal question?

Mr. William P.schuler: Your Honor, there are some facts that are agreed upon, others that are in dispute.

Justice Felix Frankfurter: It makes all the more important (Inaudible) to have them, I should think.

Mr. William P.schuler: The facts are that in 1924, the State of Louisiana enacted a statute known as a membership registration statute.

Your Honors are all familiar with the Bryant versus Zimmerman case.

Our statute is very similar to the New York statute in that case.

It provides that each -- once each year, the organizations or corporations doing business in the State of Louisiana other than business corporations, must file with the Secretary of State a list of the members of the corporation as well as a list of the officers and addresses of the officers of the corporation or association.

The second statute involved herein was passed in 1958.

It is a statute which requires all affiliates within the State that have parent organizations outside the State, to have filed with the State and the Secretary of State, an affidavit to the effect that none of the officers of the parent corporation are members of the Communist Party or members of any organization, to create subversive by the Attorney General of the United States.

Now --

Justice Felix Frankfurter: Under the first statute, Mr. Schuler, under the first statute --

Mr. William P.schuler: Yes, sir.

Justice Felix Frankfurter: -- are the required reports filed by organizations.

Have they been through 34?

Mr. William P.schuler: No, sir.

They have not.

Justice Felix Frankfurter: You mean nobody has paid any attention to this statute?

Mr. William P.schuler: They did not and I can't find any record of any being filed until about 1956, when this statute was brought into (b) -- was enforced.

Now, since that time, we have some 2000 organizations in the State that are complying with the requirements of filing a membership list.

Justice Felix Frankfurter: Does the record show that how it was brought into being as you call it (Voice Overlap) the attorneys of then Attorney Generals is safe for now and I'm going to enforce this and everybody should obey it?

Mr. William P.schuler: Your Honor, that is correct.

It does not show what the then Attorney General did, but the suit was filed three months later, the present Attorney General took office and he served notice upon all organizations.

Justice Felix Frankfurter: Suit against who was filed?

Mr. William P.schuler: The N.A.A.C.P. and the present Attorney General served notice upon all organizations in the State that he would prosecute them if they would not comply with the requirements of this statute and there's -- he has an affidavit in the record which reflects this and he specifically points out various organizations which he told either to file or he would file a suit against them, which resulted either in their filing a membership list or in their disbanding the organization.

Justice Felix Frankfurter: You said, 2000?

Mr. William P.schuler: Yes, sir.

There -- the statement --

Justice Felix Frankfurter: Where is that?

Mr. William P.schuler: You will find on page 129 and 130, an affidavit by the Secretary of State showing the number of organizations which filed the membership list.

Justice Felix Frankfurter: And the record anyway shows what kind of organizations they are?

Mr. William P.schuler: No, sir.

It does not.

Justice Felix Frankfurter: Are they all incorporated, or a -- a membership organizations --

Mr. William P.schuler: You Honor, they're -- actually, there's no way of telling under the laws of our State.

Justice Felix Frankfurter: The odd fellows have to file one of alliance or the --

Mr. William P.schuler: That is correct, Your Honor, Garden Clubs

Justice Felix Frankfurter: I noticed there's a great drought from 1958 of -- in 1958 to 1959, a number of filings have cut into half.

From 1957 to 1958 was cut into half.

Mr. William P.schuler: The --

Justice Felix Frankfurter: 19 -- 1900 to 1000, in 1959, 572.

Mr. William P.schuler: Well, 1959 Your Honor would not really reflect anything because the period of time, the 15-day period within which the applications or the membership list had to be filed, was not yet completed at that time.

Justice Felix Frankfurter: I mean 1957 to 1958, two full years.

Mr. William P.schuler: That is correct, Your Honor.

There was a dropped, but I have no explanation.

Justice Felix Frankfurter: Because I was interrupting you, you may (Voice Overlap)

Mr. William P.schuler: That's perfectly alright.

Now, I believe at the present time, are there any factual situations that are not quite clear?

Justice Felix Frankfurter: Well, what -- about what facts is their dispute?

Mr. William P.schuler: Actually, the only real dispute in fact, is whether or not there were economic reprisals against members of the N.A.A.C.P. whose names were revealed by the publication of this membership list.

Justice Felix Frankfurter: Did they file the untold list, did they file it?

Mr. William P.schuler: Yes, sir.

Some --

Justice Felix Frankfurter: What is it -- what is the suit about then that they shouldn't be required to file them in the future?

Mr. William P.schuler: Your Honor, they filed them -- some of their organizations within the State filed them for two-year periods.

Since 1958, they have refused to file the list with the State basing their contention upon the N.A.A.C.P. versus Alabama case.

Of course, it's very curious to note that in every case where we show two consecutive years that an N.A.A.C.P. branch filed a list of its members.

It increased the second year over the first.

In other words, in New Orleans, they nearly tripled after they filed their first list.

In Lake Charles, they over doubled after filing their list.

Justice Felix Frankfurter: Let's see if I understand it.

This was a dead letter until -- until the Attorney General in 1956 gave notice --

Mr. William P.schuler: 1956.

Justice Felix Frankfurter: -- fairly on this Court?

Were the filings made that year in 1956 for 1956, the next year, I'd suppose.

Mr. William P.schuler: That's right.

There were some made in 1956, some in 1957 and I believe some in 1958.

Justice Felix Frankfurter: Then came the decision of this Court and as a result of that, was it -- and one case result of that and at all events following that, N.A.A.C.P. has refused to file?

Mr. William P.schuler: That is absolutely correct.

They've refused to file (Voice Overlap)--

Justice Felix Frankfurter: That's -- that's (Inaudible), that is that suit.

Mr. William P.schuler: That is correct, Your Honor.

A fact that particular proposition is actually in both suits.

The only --

Justice William J. Brennan: Well, how many organizations identified with the N.A.A.C.P. are there (Inaudible)?

Mr. William P.schuler: We have nowhere, none.

Justice William J. Brennan: Well -- well, you -- now you've said they didn't file any.

What you said, because I misunderstand you?

Mr. William P.schuler: I said --

Justice William J. Brennan: Filings by several different companies.

Mr. William P.schuler: I said that several of the affiliates within the State did file membership lists.

Justice William J. Brennan: Well, then, that -- in other words, the statute requires independent filings by each of the affiliates?

Mr. William P.schuler: That is correct, Your Honor.

Justice William J. Brennan: And how many affiliates in fact filed?

Mr. William P.schuler: In one year, we had as many as 11 filed.

On various years, it has gone from 1 or 2 to 11 and backed down to none.

Justice William J. Brennan: You can't tell whether 11 is the total number of affiliates.

Mr. William P.schuler: I would have to go outside the record, I know there are more.

Justice Felix Frankfurter: And have they all quit all the affiliates?

Mr. William P.schuler: We have not had one affidavit or one membership list or officer list filed with the States as 1958.

Justice William J. Brennan: By any (Voice Overlap) --

Mr. William P.schuler: By any affiliate of the N.A.A.C.P.

Justice William J. Brennan: (Voice Overlap) laid on other than affiliate for the N.A.A.C.P. , your statute?

Mr. William P.schuler: Oh, yes sir.

As I stated in --

Justice William J. Brennan: No -- no.

I mean, are there any N.A.A.C.P. organizations besides the Louisiana affiliates?

Mr. William P.schuler: It would operate on the national, if they desire to do business in the State which they do.

Justice William J. Brennan: So they would be required to file.

Mr. William P.schuler: They would be required --

Justice William J. Brennan: What's their member list of -- membership list of --

Mr. William P.schuler: Their membership list would only be of their members within the State.

Justice William J. Brennan: Within the State.

Mr. William P.schuler: That is correct.

Justice William J. Brennan: And have they ever filed?

Mr. William P.schuler: No, sir.

Justice Felix Frankfurter: You mean they didn't file any -- the result of the 1956 announcement?

Mr. William P.schuler: No, sir.

Only certain affiliates within the State filed that list.

Justice William J. Brennan: That is both?

Justice Hugo L. Black: May I --

Mr. William P.schuler: I didn't --

Justice William J. Brennan: The locals.

Mr. William P.schuler: Yes, the certain locals or affiliates of the national body.

Justice Felix Frankfurter: Women's advisory are -- something like Women's Advisory Committee obviously.

Mr. William P.schuler: Well, I don't know what it's exactly like.

Justice Felix Frankfurter: Well, I don't either.

I'm just drawing out of the air.

Mr. William P.schuler: No, it's -- I guess what you might call sort of like a local union and a -- and a national.

It's an affiliate of the national body and follows a policy in constitution thereof.

Justice Hugo L. Black: You've referred to the Attorney General's announcement of it.

Where is that published in the record?

Mr. William P.schuler: On page 132, 133 and 134, an affidavit by the Attorney General.

Justice Hugo L. Black: Is that the way all of this started?

Mr. William P.schuler: No, sir.

Justice Hugo L. Black: Where is that announcement that you're talking about?

Mr. William P.schuler: The Attorney General made it general and -- and just by conversations, by references in newspaper that he was going to enforce the law.

This affidavit in here is an affidavit by the Attorney General as to the means and methods he took to communicate his policy to the public at large.

Justice Hugo L. Black: What I'm interested in is in -- is there any statement in here that shows why he said he would decide it to enforce that law?

Mr. William P.schuler: Of and I would say, it would be his duty.

It's his duty under the statute.

Justice Hugo L. Black: I understand that but did -- did he make any statement about it?

Mr. William P.schuler: No, sir.

To the best of my knowledge, he did not.

Justice Hugo L. Black: Well, why -- what do you mean by the 1956 announcement then?

Mr. William P.schuler: I did not.

I said if a suit was filed in 19 --

Justice Hugo L. Black: Several times -- several statements were made to the Attorney General, 1956 announcement.

Has -- was there any such announcement?

Mr. William P.schuler: Your Honor, as I say, it all depends on what you consider an announcement.

As I said, the Attorney General in his affidavits set forth that he made announcement generally to the public that he was intending to enforce the statute which under his -- under the laws setup, he was required to do.

He advised organizations for the fact that they would have to file a list.

I think the affidavit more than speaks for itself.

Justice Hugo L. Black: But I -- I -- all I was interested in was to see if you had that so-called 1956 announcement that the Attorney General made --

Mr. William P.schuler: I believe, Your Honor --

Justice Hugo L. Black: (Voice Overlap) said why he had decided to enforce that it was -- was in here?

Mr. William P.schuler: No, sir.

Justice Felix Frankfurter: Mr. Schuler, when if -- if the 1956 -- the 1956, there was action taken by the then Attorney General Fred LeBlanc.

When did the present Attorney General enter office?

Mr. William P.schuler: May of 1956.

Justice Felix Frankfurter: Oh, the suit was started by his predecessor --

Mr. William P.schuler: That is correct.

Justice Felix Frankfurter: -- and continued it and then he -- so that the announcement really was what you would say the effective announcement by taking of -- by starting a litigation.

So far as the record shows that Justice Black had tried to elicit, there is no statement.

No, no release of whatever these modern terms are of talking.

Mr. William P.schuler: Well, if -- if you're going to address it up into a formal statement --

Justice Felix Frankfurter: But, I don't -- I don't --

Mr. William P.schuler: I don't believe there is any such thing.

Justice Felix Frankfurter: Either Justice Black nor I would dress up or dress down, I just want information.

Mr. William P.schuler: Your Honor, as I say, in the affidavit, the Attorney General sets forth the means by -- the means he took in order to inform the public of his intention to follow the laws of the State of Louisiana.

Justice Felix Frankfurter: We have your statement that an act passed in 1924 laid dead on the statute books of Louisiana.

Attorney General Fred S. LeBlanc started the suit in 1956, is that correct?

Mr. William P.schuler: That is correct with one thing I'm not sure, whether or not, there was any compliance there would immediately in 1924.

Justice Felix Frankfurter: Anyhow, we don't have a deal.

Mr. William P.schuler: It -- I can say with a -- a shortness that there was no compliance from 1950 until 1956.

Justice William J. Brennan: Well, I notice is that a newspaper or something in the record.

I suppose that's the most reliable evidence, but this is a newspaper dated January 5, 1957.

Its branches in New Orleans, Shreveport and Lake Charles, filed this earlier to comply with the 1924 state law requiring such rules to uphold that national garden church groups.

The old law, originally aimed at the ku klux klan was used last year to outlaw the pro immigration organization in the State.

Mr. William P.schuler: Yet, I would say it was used to enjoin it from doing business because they failed and refused to file their list in conformance with the law.

Justice William J. Brennan: Well, I think -- is -- is there any suggestion here that this old law was revived only to require the N.A.A.C.P. to file?

Mr. William P.schuler: It has been contended by the plaintiffs herein, however, I find nothing in the record to show that was the only reason and I would say that the evidence would belie that since as I say, the Attorney General has vigorously seen to it that other organizations within the State had to make equal compliance with the law as reflected by the organizations that have filed in accordance with that statute.

Justice Felix Frankfurter: Mr. Schuler, may I ask you merely as a historical fact carrying no innuendo, just as a historical fact if it's an ascertainably historical fact.

Was the klan a lively organization in Louisiana between 1924 and 1930s?

Mr. William P.schuler: I would say that the passage of this statute in 1924 sounded the death knell of the clan in the State as a real active organization after the statute had very rapidly passed out of the picture.

Justice Felix Frankfurter: You mean the passage of the Act was so effective that --

Mr. William P.schuler: Yes, sir.

Justice Felix Frankfurter: -- that called it out?

Mr. William P.schuler: It did.

Justice Felix Frankfurter: Alright.

I'm not -- I'm -- [Laughs] you cannot imagine how ignorant I am of what took place in -- in Louisiana between 1924 and 1935 --

Mr. William P.schuler: Oh, Your Honor, I'm --

Justice Felix Frankfurter: (Voice Overlap)

Mr. William P.schuler: -- I'm rather ignorant too, I wasn't born then.[Laughter]

Justice Felix Frankfurter: Well, our knowledge were limited to the date of our birth, would be awfully ignorant, even more so than we are.

Chief Justice Earl Warren: May I ask you this?

Does the Act require all of the fraternal organizations --

Mr. William P.schuler: It does, Your Honor.

Chief Justice Earl Warren: -- to file every Masonic Lodge, every Knights of Columbus Lodge, every Elks Lodge, every --

Mr. William P.schuler: Your Honor, I would have extreme doubt with regard to the Knights of Columbus and the Masonic Temple Lodge, since they could very easily come under the definition of a religious order or they're not a church.

I think the Knights of Columbus and the Masonic Temple are -- Masons are close enough to being a religious organization to be exempt under the provisions of the statute.

Justice Hugo L. Black: So the Masons are religious org?

Mr. William P.schuler: Well, You Honor, I know that everything that they have in the Masons to a larger extent, deals with -- I -- I would say regard in church principles.

Chief Justice Earl Warren: Well, let's take -- let's take lodges like the Elks Lodge and the --

Mr. William P.schuler: They have to comply.

Chief Justice Earl Warren: -- and the Moose and Eagles and lodges of that kind, do they all comply?

Mr. William P.schuler: That is correct, Your Honor.

As a matter of fact, I believe the record will show that the Ladies' Garden Clubs comply too.

Chief Justice Earl Warren: All the college fraternities?

Mr. William P.schuler: To the best of my knowledge, I don't know.

Chief Justice Earl Warren: It seemed to me with only 517 registering in the year 1959 that that could hardly be so because there were --

Mr. William P.schuler: Your Honor, there are --

Chief Justice Earl Warren: -- I imagine there are many college fraternities --

Mr. William P.schuler: As I attempt --

Chief Justice Earl Warren: -- to be restrained, if you didn't count anything else.

Mr. William P.schuler: As I attempted to explain, Your Honor, the registration period for that year had not closed on the date that the court order that the Secretary of State to produce that information.

The organizations that desired to file still had several weeks.

After that total was given within which to file the membership in their organizations and come within compliance, so that figure could not be used at all.

Chief Justice Earl Warren: Alright.

Mr. William P.schuler: Getting -- I think we have -- well, there's one more question really that comes up.

The question as to whether or not, there was any -- any economic reprisals or intimidation as a result of the publication of these names and lists.

As I've stated, the State here is in rather bad position to prove anything.

The only thing we know about the members are the information that the organizations have filed with us.

As I say however, each organization, N.A.A.C.P. affiliate within the State that did file a membership list for a two consecutive year period, shows that the second year, their membership increased substantially over the first year.

Thus, it's rather hard to say that the filing of the membership acted as a deterrent upon membership because they actually increased after each filing.

Now, there is some evidence given by affidavit to the effect that persons were discriminated against.

The affidavits are very general, a man comes in, we have some several of the gentlemen who were officers in various branches of the N.A.A.C.P. who came in and filed affidavits to the effect that they had been discriminated against.

In order to go behind these affidavits, the State of Louisiana took the deposition of these individuals.

And almost without exception, the testimony elicited from them while under interrogatories and examination, show that these affidavits that had originally filed were no sense correct.

They -- people who had stated that they were discriminated against upon cross-examinations said that nobody ever talked to him about their membership in the organization.

In fact, one gentleman who said he had been discriminated against was drawing an old age pension from the State when he wasn't entitled thereto, he testified that he and his wife who were members in the organization, had never been reproached, nobody had ever discussed the matter with him.

Yet, his affidavit said that he had been discriminated against.

Justice Felix Frankfurter: Mr. Schuler, why was all these information elicited on affidavit from depositions rather than your testimony?

Mr. William P.schuler: Your Honor, because that's the only way the District Court in our district will allow us to try a preliminary injunction suit.

Justice Felix Frankfurter: You mean all preliminary injunction --

Mr. William P.schuler: That is correct.

Justice Felix Frankfurter: -- must require an affidavit?

Mr. William P.schuler: We have requested on several occasions to try them by other manners and our District Court says that it does not try preliminary injunctions other than by affidavit.

Justice Charles E. Whittaker: (Inaudible)

Mr. William P.schuler: Your Honor, they -- one newspaper in Coushatta published some for the Red River branch of the N.A.A.C.P.

Generally, I don't believe they were published.

The only fact -- the only way, I was able to derive information as to the number of members in the various organizations on particular years, was to go to the Secretary of State's office and count off the number of members that appeared on the -- on the list in that particular year.

Justice Charles E. Whittaker: There is a public record?

Mr. William P.schuler: Yes, sir.

Justice Charles E. Whittaker: Were there any publications by newspapers with others of the memberships of other institutions or associations?

Mr. William P.schuler: I'll be honest with Your Honor, I don't know.

Justice John M. Harlan: Is it fair to say as a matter of the earlier colloquy that there's nothing in this record to show or had -- was the State reactivated this statute in 1956?

Mr. William P.schuler: There --

Justice John M. Harlan: Other than the general (Voice Overlap) --

Mr. William P.schuler: I can find nothing in the --

Justice John M. Harlan: -- Attorney General to enforce the law.

Mr. William P.schuler: I can find nothing in the statutes specifically designated other than the fact that it's a general requirement of law that the Attorney General does this.

Justice John M. Harlan: Oh, there was a reactivation of the statute --

Mr. William P.schuler: That is correct.

Justice John M. Harlan: -- dead letter, that's all I was --

Mr. William P.schuler: That is correct.

It's -- it's not denied or whatsoever.

Now, getting down to -- if we're clear on the facts, the law on the subject I think can be primarily divided into two categories.

While the Court has not done it, it seems to me that your freedoms of association cases are divided into two categories.

The first is the -- what I call the communal right to freedom of association which is the right not to have to produce membership list of an organization and the second is a personal right which keeps a person from having to give information as to his own personal affiliations with organizations.

The first category of cases since it's most appropriate to the matter here today should be discussed first.

There are four cases that this Court has decided previously relevant to this one field.

Now, Bryant versus Zimmerman, N.A.A.C.P. versus Alabama, Bates versus Little Rock and Uphaus versus Wyman.

Now, they're split 50-50 on the effect of the First Amendment upon the production of this list.

Both the Zimmerman case and the Uphaus case required the production whereas, the N.A.A.C.P. and the Bates case do not.

However, I believe there's a great distinction between the case today and the Bates and Alabama cases.

This Court decided in both of those cases that there was no justification whatsoever for the production of the membership list.

In the Alabama case, they said that all the State intended to prove by the production of the list under subpoena duces tecum was business that the N.A.A.C.P. had done within the State.

And the N.A.A.C.P. in its answer admitted that it has done that business.

Therefore, there was absolutely no necessity for the production of the list to prove something that was admitted in the answer.

The second case, the Bates case was a local taxation statute.

In this --

Justice Felix Frankfurter: Before we get on with the cases, I'd like to go back a little bit to the fact that it's found by the District Court.

What do you do with the -- there aren't specific finding, were there specific finding --

Mr. William P.schuler: No, sir.

Justice Felix Frankfurter: -- that will be most -- extract them from the per curiam opinion, is that right?

Mr. William P.schuler: That is correct, Your Honor.

Justice Felix Frankfurter: Well, then that these three judges, two of them your local -- Louisiana judges are --

Mr. William P.schuler: All three of them are --

Justice Felix Frankfurter: All of them, yes, I beg your pardon, all of them.

Page 176 to 179.

They say on page 178, Mr. Schuler, “The documentary evidence submitted by the N.A.A.C.P. shows that some members after exposure as members have been subjected to certain economic reprisal.”

The Court going -- onto say that a large part of the membership of school teachers and after the injunction, every one of them resigned from the N.A.A.C.P.

And the footnote says that after the 1955 injunction, not only did the branches declined a number which might not be significant, but the total membership declined from 13,000 to 6000.

It doesn't quite fit in with the figures that I gathered from you perhaps erroneously.

Mr. William P.schuler: Your Honor, the -- those figures are figures submitted by the N.A.A.C.P. from the national headquarters.

We have no way of verifying or -- the figures in any way.

The only figures we submitted were the figures that were available to us, the list that had been filed with the State.

Justice Felix Frankfurter: You mean as they contradicted these figures?

Mr. William P.schuler: I don't know.

Justice Felix Frankfurter: Well, is there --

Mr. William P.schuler: There's no way of telling.

Justice Felix Frankfurter: They must have done something that those figures contradict -- according to your figures, you say their membership increased.

Mr. William P.schuler: Of the figures that are available to us, the membership did increase.

Justice Felix Frankfurter: You mean whether the figures available to you are figures of that the N.A.A.C.P. old and the affiliates submitted.

Mr. William P.schuler: That is correct.

Justice Felix Frankfurter: Although, the declarations against interest if they contradict their own testimony.

Mr. William P.schuler: Your Honor, I think that can be reconciled and that I believe the N.A.A.C.P. has alleged they had 40 some affiliates within the State.

Now -- and on the most populous year, only 11 of those affiliates filed.

What happened to the membership of the 29 affiliates that did not file, I'm in no position to guess that conjecture or report to this Court.

Justice Felix Frankfurter: All I'm suggesting is this that we've got to decide which I have to dispose of the case on the basis of this record.

Mr. William P.schuler: I understand that.

Justice Felix Frankfurter: Now, here's a decision by three judges, locally, all of them has been properly, like -- three -- all three them, local judges and they give me these findings, the practical purposes or the finding, as much so as if they had appendix 1,2,3, enumerated set of findings.

Isn't that true?

Mr. William P.schuler: Yes, sir, but I don't believe the facts justified the decision of the Court, that's why I'm here.

Justice Felix Frankfurter: Well, there's nothing in the record that contradicts that you say -- you say that the Court didn't allow you to contradict and that's what in effect you're saying.

Mr. William P.schuler: That's a --

Justice Felix Frankfurter: Is that what you're saying?

Mr. William P.schuler: That is entirely correct.

There was no way -- the only contradiction that we were able to achieve was that when affidavits were filed with regard to specific happenings.

We went out to depositions of the parties therein and the depositions of the parties showed that the affidavits filed were incorrect that they had built up large things out of practically nothing.

The records replete with the change of the attitude of witnesses between an affidavit that they filed without cross-examination and what they testified to when they're brought in, put under oath, and under cross-examination, asked questions.

Justice Felix Frankfurter: Now, I haven't -- it was the first time that I'm paging, thus leafing around and just leafing your brief.

Has your brief set forth in deadly parallel columns or in appropriate way that that the record doesn't -- contradicts or at least, just does not justify the conclusions of the forth?

Mr. William P.schuler: Oh, yes, sir.

My brief certainly does.

Justice Felix Frankfurter: Where is that?

Mr. William P.schuler: Your Honor, I go into the testimony of the various witnesses.

They contradict their testimony on pages 27 through 32 of my brief.

This just picks out excerpts, but I don't believe these excerpts are out of context.

I believe that out of the record itself, you can see that they really show the true attitude of the situation at the time that they could --

Justice Felix Frankfurter: Did you as -- as the record -- is the State argued before these three judges, before the District Court that the only way -- the only way to search the accuracy of these allegations or affidavits would be to put witnesses on the stand and have them cross-examined in the hearing of the judges?

Mr. William P.schuler: Yes, sir.

Justice Felix Frankfurter: Where is that in the record?

Mr. William P.schuler: Your Honor that that is not taken down in the record.

There was no argument in the record at all.

Actually, a lot of the witnesses --

Justice Felix Frankfurter: You had no argument at all?

Mr. William P.schuler: Well, I say we had argument -- oral argument on --

Justice Felix Frankfurter: Did you -- did you put the point you've just put to this Court that that court, namely that this case may well do.

You haven't challenged the relevance of the issue of discrimination resulting from the requirement of filing the report, do you?

Mr. William P.schuler: Your Honor, may I say --

Justice Felix Frankfurter: Suppose -- just answer that if you -- you couldn't have.

Mr. William P.schuler: Yes, we -- we charged that the --

Justice Felix Frankfurter: No, but if -- if -- did you deny the relevance -- did you say that it doesn't make any difference even as a result of filing, they would be discriminated?

Do you make that -- take that position or do you take that (Voice Overlap) --

Mr. William P.schuler: No, sir.

We -- very -- as much as we could, we attempted to controvert all testimony that had been introduced.

Justice Felix Frankfurter: Did you thereby acknowledge the relevance of their claim that this resulted in unfair discrimination against them?

Mr. William P.schuler: No, I didn't acknowledge that.

No, sir.

Justice Felix Frankfurter: What?

Mr. William P.schuler: I did not acknowledge --

Justice Felix Frankfurter: I don't mean the proof of it, but the relevance.

Mr. William P.schuler: I deny both.

Justice Felix Frankfurter: Alright, then you say that even if you could prove that they were right or prove that they were wrong, doesn't make any difference, is that what you're saying?

Mr. William P.schuler: To -- to a --

Justice Felix Frankfurter: Are you taking that position here?

Mr. William P.schuler: Your Honor, it's hard to take a definite position because as this Court has held so many times, you have to weigh and balance --

Justice Felix Frankfurter: Well, but --

Mr. William P.schuler: -- the particular effects.

Justice Felix Frankfurter: I'm asking you is that on a -- a factor to be balanced?

Mr. William P.schuler: Oh, it's going to have to be balanced.

Yes, sir.

Justice Felix Frankfurter: Alright.

Then you -- then you admit the relevance?

Mr. William P.schuler: It's relevant.

Yes, sir.

Justice Felix Frankfurter: Alright.

Now, did you then say to the Court in an appropriate way that since this is an issue properly before the Court, you must have opportunity to disprove the establishment of that issue?

Mr. William P.schuler: Your Honor, that was taken up with all three judges and the ruling on that was this was only a hearing on a preliminary injunction, that it was only necessary that the defendant or that the plaintiffs herein show a prima facie case.

That if the question of intimidation became a real issue that we always had the right to go back on the permanent injunction and try it by oral testimony.

That's not only the ruling on this case.

That's the ruling on every case of this nature we have tried in the State for the past five years.

Justice Felix Frankfurter: Well, never mind all the other cases.

In this case, was the ruling of the Court that for purposes of a preliminary injunction, will take as proof, allegations in an affidavit.

Is that the position of the Court?

Mr. William P.schuler: Your Honor, that is not only the ruling of the Court.

It is the rules of the Court.

Justice Felix Frankfurter: You mean formulated rules.

Mr. William P.schuler: That's correct.

Justice Felix Frankfurter: Did you then say, very well, we will try to show those trials on the permanent injunction?

Have you made that endeavor?

Mr. William P.schuler: No, sir, we have not, Your Honor, because we felt that even though we were not allowed to cross-examination -- cross-examine the witnesses in the State on the stand at the time the hearing went on, we went further, we went out, went 300 and somewhat miles to Shreveport to locate witnesses who made affidavits for the other end of the State and took oral deposition from them and put those in the record.

Justice Felix Frankfurter: Let's -- let's see if you and I can come to an issue.

As I understand you, your claim is that under the rules of the District Court for the Eastern District of Louisiana, claims made by a plaintiff seeking a temporary injunction will be taking as established for purposes of granting the temporary injunction.

Is that right?

Mr. William P.schuler: No, sir.

I say they are taken solely by affidavit.

There's no oral testimony.

Justice Felix Frankfurter: Yes, I know, but in anything they say in an affidavit will be accepted as true, is that it?

Mr. William P.schuler: Unless it is contradicted in a -- other affidavit then the court weighs the two.

Justice Felix Frankfurter: But you say in this case, you weren't in a position to contradict except through cross-examination and examination.

Is that right?

Mr. William P.schuler: And affidavits of our own.

Justice Felix Frankfurter: Yes, I know, but those do not adequately enable you to disprove the allegation.

Mr. William P.schuler: No, sir, they do not.

Justice Felix Frankfurter: And so really, your case down here comes to the validity of the District of the Eastern District to have such a rule, is that it?

Mr. William P.schuler: It does.

If this Court is -- if this Court will decide that the -- it is necessary to have intimidation in order to have the First Amendment apply herein.

Justice Felix Frankfurter: But you just said that you yourself regarded as relevant, as relevant that discrimination follows the disclosure in the report, didn't you?

Mr. William P.schuler: I think it's relevant then.

Justice Felix Frankfurter: Alright.

Well, if it's an issue, it's relevant then you ought to be allowed to -- to meet the issue.

Mr. William P.schuler: Your Honor, there's one other issue that I'd like to get to very quickly.

That is the second part of our statute which requires that the organizations filed a list of their officers.

In our State, there is no requirement whatsoever that these organizations register with the State in any matter shall perform.

In other words, you can start an organization, it can operate and other than this statute, you have no idea who the officers are, who the members are or anything about the organization whatsoever.

We feel that even under all the decisions of this Court, including Bates case and Alabama case that we have a perfect right to know who the officers of the national and affiliate organizations are and that this information is not protected at all by the First Amendment and a right of association.

Justice Potter Stewart: How about the -- or are you going to get to the second statute involved?

Mr. William P.schuler: The second statute, I will get to -- that I could've gotten to it a lot better if we had an interpretation by our own state court.

The local court down in New Orleans is, I -- I'm talking about the federal court, decided that the statute was unconstitutional because it placed a burden upon people in the State of Louisiana that they had no way of performing, that is tell what member -- what organizations other people belong to.

Well, I think the statute is susceptible of that interpretation.

I believe it's also susceptible of a constitutional interpretation.

The statute makes no distinction as to who should file the list.

I say if our Court had to determine that statute, they would say that the individuals who were the officers of the national association would have to make those affidavits which would in turn be filed by the local organization as a prerequisite to doing business in the State.

Now, that would be my interpretation of it and I think it would run right along the lines of the noncommunist affidavits that you have to file in order to do business with the National Labor Relations Board.

But as I say, since our state court never had the possibility of interpreting the statute, that's only -- an interpretation I believe could be placed on it.

Chief Justice Earl Warren: Is that Act 260 --

Mr. William P.schuler: That is Act 260 of 1958.

That's correct, Your Honor.

Chief Justice Earl Warren: Well, I understood that the -- from the opinion here that the Attorney General conceded that the State was not interested in pressing the argument as the constitutionality of the --

Mr. William P.schuler: I believe the Court was a little liberal on -- with the words of the Attorney General.

I believe I argued that matter myself and what I told the Court was that there are absolutely no statutes similar or exactly similar to our statute herein and that frankly, I just couldn't give them any law to sustain the statute and that I didn't care to -- that I couldn't argue it any further.

As I say, primarily, I was interested in the other one.

But as I say, this statute, I did not concede the constitutionality of it or the unconstitutionality.

In fact, I'm prohibited by law from so doing within the State.

Justice Hugo L. Black: May I ask you about the other statement on page 178?

Mr. William P.schuler: Yes, sir, certainly.

Justice Hugo L. Black: (Voice Overlap) Mr. Justice Frankfurter asked you about where they said that one ground that they found in Louisiana statute, a lot of teachers belong to the organization.

The Louisiana statutes denied an employment to them, if they believed in integration of the racism in public schools.

Mr. William P.schuler: Well, Your Honor, there, I would say, are probably three answers to that.

Justice Hugo L. Black: Was there such a statute?

Mr. William P.schuler: There was such a statute on the books.

Number one, I believe it was declared unconstitutional in a previous Court of Appeal decision case, LSU -- Ludley versus Louisiana State University.

Second, the statute has never been enforced either before or after the Ludley decision and third of all, unlike the school boards in --

Justice Hugo L. Black: But how could they know it wouldn't be enforced, you waited 25 years to enforce it but --

Mr. William P.schuler: Well, Your Honor, as I say, I believe it was declared unconstitutional in the Ludley versus LSU case.

Justice Hugo L. Black: Well, they -- they couldn't be assumed to know that it was unconstitutional, could they?

Mr. William P.schuler: Well --

Justice Hugo L. Black: Their names were exposed.

Mr. William P.schuler: Your Honor and may I get to the third point --

Justice Hugo L. Black: Yes.

Mr. William P.schuler: -- unlike Shelton versus Tucker, the teachers are not hired on a yearly basis.

They have teachers' tenure and in event, this tenure is attempted to be interrupted.

They have a hearing before the Board, court proceedings which could eventually come all the way up to this Court for a determination of their rights under this particular statute and determine the constitutionality thereof.

Justice Hugo L. Black: That would be a pretty heavy price to pay to belong to an organization.

Mr. William P.schuler: Your Honor, that -- all I'm doing on that is attempting to ferret out the distinction between the case of Shelton versus Tucker and the cases handed down this Monday with regard to membership in the bar associations of our various states.

Thank you, Your Honors.

Chief Justice Earl Warren: Mr. Carter.

Argument of Robert L.carter

Mr. Robert L.carter: If the Court please, I -- I think that at least in terms of -- of the interpretation of the facts that Mr. Schuler and I are somewhat at odds and if -- with your permission, I will spend some time in attempting to explain what I concede to be the facts in this case, in respect to its present posture.

In 1924, as Mr. Schuler indicated, this statute which is the membership filing statute, the old statute, was enacted.

It apparently accomplished this purpose and laid on it until 1956.

In 1956, the Attorney General LeBlanc brought action in the state court against the N.A.A.C.P. charging that it had failed to comply with the statute which require the filing of membership list and therefore that the organization should be dissolved.

Justice William J. Brennan: When they say brought actions, Mr. Carter, was there any allegation that this failure followed a demand for filing?

Mr. Robert L.carter: No, sir.

Justice William J. Brennan: It was just an action --

Mr. Robert L.carter: There was no demand.

Justice William J. Brennan: -- out of the blue of which --

Mr. Robert L.carter: Yes.

Justice William J. Brennan: -- N.A.A.C.P of nothing?

Mr. Robert L.carter: Yes, that's right.

This -- this action was filed, there was no demand that any list to be filed, no demand that there'd be any compliance with this law.

Now, that statute -- of rather that case was -- was then in the state courts of East Baton Rouge.

We filed a petition to remove the case to the federal court.

While this -- we -- although, we had complied with 44 -- 40 -- 1446, the state court nonetheless, proceeded to hear the case and to issue an injunction against the operation of the organization.

Justice Potter Stewart: Well, does the State, N.A.A.C.P. or one the -- one of the local branches or the national or what?

Mr. Robert L.carter: Well, they issued it against -- they've dissolved all N.A.A.C.P. operation and functioning in the State, prohibited until we had complied with the -- with the --

Justice Potter Stewart: Who were the parties?

Mr. Robert L.carter: -- with the organization.

Justice Potter Stewart: Who -- who was the defendant?

Mr. Robert L.carter: The defendants were -- were the New York Corporation and several of the officers and -- and members and -- and employees that worked in -- in Louisiana.

Justice William J. Brennan: What is the state organization, Mr. Carter?

Mr. Robert L.carter: Well, there are -- doesn't -- that there are several branches.

There about -- there were in 1955, some 65 branches which were in New Orleans and various (Voice Overlap) --

Justice William J. Brennan: Now, they are branches of the New York Corporation or --

Mr. Robert L.carter: They are unincorporated affiliates of the N.A.A.C.P. in New York.

Justice Felix Frankfurter: Did the N.A.A.C.P. , what kind of a corporation is it?

Mr. Robert L.carter: It's a -- it's a membership corporation --

Justice Felix Frankfurter: New York Corporation.

Mr. Robert L.carter: A New York Corporation.

Justice Felix Frankfurter: Now, in order to do business in Louisiana, does it have to get a permission from the circuit?

Mr. Robert L.carter: No, sir.

We do not and --

Justice Felix Frankfurter: You do not.

Mr. Robert L.carter: This is conceded.

You don't --

Justice Felix Frankfurter: Pardon me?

Mr. Robert L.carter: We -- we do not have to file any or do -- do anything or to do business in Louisiana.

Justice William J. Brennan: We know statute like the Alabama statute.

Mr. Robert L.carter: That's right.

That's right.

In fact I, if I'm not mistaken, I think this is conceded in -- in the answer which the Attorney General had spoken.

Justice William J. Brennan: Now, in addition to these 65 affiliates, Mr. Carter, is there some supervening state organization?

Mr. Robert L.carter: There is a -- an organization called the -- the Louisiana State Conference of N.A.A.C.P. branches, which is merely a -- an overall organization which seeks to carry out on the statewide basis, the -- the activities of these 65 branches.

Justice Felix Frankfurter: That's not a corporation, is it?

Mr. Robert L.carter: That none of -- none of the --

Justice Felix Frankfurter: Just way of connecting together these loose bodies.

Mr. Robert L.carter: That's right.

Well, the only corporation involved in the N.A.A.C.P. is the New York Corporation.

All the other affiliates aren't corporation.

Justice William J. Brennan: But the injunction sought in the state courts would have or whatever the relief was by injunction or otherwise, would've dissolved all of the affiliates, is that it?

Mr. Robert L.carter: All the affiliates.

Justice William J. Brennan: And this conference, state conference.

Mr. Robert L.carter: All affiliates, any kind of any N.A.A.C.P. activity was prohibited by this injunction.

Justice Felix Frankfurter: Was the -- was the suit to dissolve these collectives or to make them file reports or both, which was it?

Mr. Robert L.carter: The suit was to dissolve them until they had filed (Voice Overlap) --

Justice Felix Frankfurter: Until but the purpose was to get filings.

Mr. Robert L.carter: That's right.

Justice Charles E. Whittaker: So that judgment was void wasn't it, Mr. Carter?

Mr. Robert L.carter: That judgment was -- was declared void in a -- on appeal on the grounds that it had -- it had come after removal had been affected and therefore was in violation of 1446.

Now, at that point, we -- we went in -- back into the federal court to seek to enjoin the state proceedings and the proceeding further with the case.

Federal court indicated that it could not, even though it agreed with us that the State had -- that the state court was incorrect.

That it could not do anything about this, that we had to prosecute in our -- our appeal into the Louisiana courts in which we did.

Now, after the Louisiana Court of Appeals ruled that the judgment was void and what had been done was void, nothing was done about this -- this case that had been removed.

It stayed in the courts until 1958, this new statute which required the filing of affidavits was enacted.

Print this transcript Transcript: 

Argument of Robert L.carter

Mr. Robert L.carter: -- to the Court what had occurred in the case.

And I think that I got as far as indicating that the action which had been brought under the 1924 law in the state court had been declared void, at least the injunction issue.

You will note that the -- the statute which is set out in the appendix in the appellants' brief on page -- setting out at page 43 and 44 that the District Attorneys are permitted to bring action against various organizations that violate the law.

During the period, therefore, while the injunction in 1956 had been declared void, the various organizations and affiliates of the NAACP in Louisiana were fearful to function without filing a list because of Section 404.

Therefore, some of them decided that in order to function at least at that point, one of them decided that in order to function, it would file a membership -- it would file a list of -- of members.

Now, that organization that did that was in 1956 was the New Orleans branch.

After 1958 or 1957, I think a few more organizations filed a list of their members, but it -- as Mr. Schuler indicated only 11 of 65.

The rest of the organizations and affiliates of the -- of the NAACP in Louisiana were not functioning and were -- were not operating at all.

In 1958, the second statute, which is before the Court, the affidavit statute was enacted.

When it was enacted, we then brought suit in the federal court attacking the constitutionality of the new statute requiring the affidavit and the old statute on the grounds that they violated due process, equal protection and the First Amendment rights, insofar as they are included in the -- in the Due Process of Fourteenth Amendment.

That was answered, the Attorney General answered there and the case, nothing occurred until sometime in 1959 when the Attorney General then went into the state court and it secured an injunction against the functioning and operation of the -- of the organization on the grounds that it had not complied either with the 1924 law or with the 1958 law.

At that point, we sought to go into the federal court on the grounds that this was a -- an interference with the jurisdiction of the federal court and we sought an injunction to restrain the -- the Attorney General from proceeding any further, since that came out, it was pending before the federal court and the federal court could handle and dispose of the whole case.

It was then that the federal court consolidated the two matters and had a hearing on this case.

Now, if you will note the -- the order on the hearing indicates that the -- one of the things was that any information, evidence was to be by disposition.

That’s set out on page 129 of the record.

And the federal court apparently was concerned about the fact that how many organizations had filed membership list and how many prosecutions had been taken by the Attorney General and specifically asked the Attorney General to give information as to that.

And you’ll note that on page 1 -- 130, the -- and 129, the Attorney General indicates that he is unable to say how many prosecutions have been brought under the Act, this is since 1924.

And he is also unable to indicate how many of the organizations are affected.

Chief Justice Earl Warren: You say that’s on page 130?

Mr. Robert L.carter: I think so, Your Honor.

Chief Justice Earl Warren: Both?

Mr. Robert L.carter: I think I'm right, Your Honor.

Chief Justice Earl Warren: I get it.

No, it's on 129.

Mr. Robert L.carter: Yes.

Yes, ' on 129.

Now, the affidavits which we think in the evidence we have indicated, we have affidavits which show that the -- and the most graphic illustration of this, I think, is the affidavit at page 119, showing clearly that there had been a loss of members -- a great loss of members, a loss in units and a loss in funds.

For --

Chief Justice Earl Warren: Before you get to that, may I ask --

Mr. Robert L.carter: Yes.

Chief Justice Earl Warren: -- if there's anything in the -- in the record to indicate that this statement of the Attorney General to the effect that it was impossible to determine from the records in his office, a number of names of defendants as which the Attorney General has brought action under that Act to us, was because there were so many of them or because there were none or -- or what?

And --

Mr. Robert L.carter: What --

Chief Justice Earl Warren: -- is there anything in the record to indicate what the number is?

Mr. Robert L.carter: The -- the only thing I can say Mr. Chief Justice is that he was specifically asked by the court to bring specific information as to how many people, how many organizations have you prosecuted?

Now, he's -- the information he indicates is that we cannot determine that.

And I -- I -- the only thing I can construe from that is that there is no -- that he is unable to say anything other than the NAACP that -- that he has brought in the action against any other organization.

Certainly, there is no evidence.

Let me put it this way more positively.

There is no evidence of any action being brought against any organization except -- except the appellees.

And there's no that -- that there is no evidence in the record for that at all.

Chief Justice Earl Warren: Have you ever heard of any other prosecutions or so?

Mr. Robert L.carter: No, sir.

Chief Justice Earl Warren: Any evidence.

Mr. Robert L.carter: No, sir.

Now, there is also the -- the affidavits which are set out on pages -- indications at pages 60, 118, 122 and 125 for example, indicate that these specific organizations since the 1956, when the action was -- was brought had declined in members.

They've lost teachers and so forth.

So that I think that the facts -- although these facts are in -- are controverted, that is their affidavits presented by the -- the defendant, showing that the -- that they were not these kinds of reprisals and that there were -- it was not harmful for the organization to submit a membership list.

Still, I think that to weigh on the evidence as a whole that the court below had ample evidence in the -- in the newspaper reports and so forth, to indicate that this -- to -- to believe that this was a fact.

Now, I must say that insofar as the question that Mr. Schuler has brought here about the -- in answer to a question from Mr. Justice Frankfurter about the -- the District Court rules.

That is that an objection being made to the fact that the -- the evidence had to be presented was required to be presented in affidavit form that this is the first time that this question has been raised.

It seems to me that as far as I -- the record indicates that after the temporary injunction was issued or rather before that there's no evidence in the record for either party, even we or they, objected to the requirement that this matter be presented in affidavit form.

Justice William J. Brennan: (Inaudible)

Mr. Robert L.carter: Yes, sir.

It's a formal order that it is but there's no -- there's no evidence --

Justice William J. Brennan: (Inaudible)

Mr. Robert L.carter: Yes, sir.

Justice William J. Brennan: (Inaudible)

Mr. Robert L.carter: That's right.

Justice Felix Frankfurter: Were you at the trial or did you -- were you counsel in the case?

Mr. Robert L.carter: Yes, sir.

Yes, sir.

Justice Felix Frankfurter: I -- maybe I got the wrong impression.

I'm -- I'm afraid I did, but I got the impression that Mr. Schuler indicated that he thought they were bound by the local rules.

I've looked up the rules of that court.

There is no such a requirement, but my attention has been called to the Rules of Civil Procedure and I should think neither the local rules, nor the Rules of Civil Procedure bind the District Court to try a temporary injunction.

This was not a restraining order, it's a temporary injunction.

Nor does it even require among restraining orders, just authorizes.

For this, the District Judge freeze the hearing of oral testimony, if necessary.

Now, what I want to know is whether at any time the State felt that by being so bound that is if they must -- that to prove that the -- the issue is to be determined on affidavits whether they indicated, that this doesn't enable them to sufficiently to undermine the allegations of affidavits or the assertions of affidavits.

Mr. Robert L.carter: Well, I have not --

Justice Felix Frankfurter: And if we have a record here, what -- what do say to this, Mr. Carter?

If in fact, dealing with this suit for a temporary injunction on affidavit precludes the proper exploitation, the proper exposition of the issues by affidavit.

Then that's a mutilated way of having a case come up.

Mr. Robert L.carter: Well, let me -- let -- let me try to answer it this way, Mr. Justice Frankfurter.

I -- the -- it seems to be the practice in that particular court in Louisiana to try these kinds of cases by an -- in an affidavit form.

I -- this is -- seems to be the practice of the court on a temporary restraining order --

Justice William J. Brennan: (Inaudible)

Mr. Robert L.carter: -- affirming into --

Justice William J. Brennan: (Inaudible)

Mr. Robert L.carter: Well, it's the practice of that court, the Eastern -- Eastern District, every time I've been there -- well, this has been what's occurred.

Now, after the temporary restraining order was issued and the hearings were postponed several times in order to permit the State to get additional evidence and testimonies, after a temporary restraining order was issued or a temporary injunction was issued, the State could have, it seems to me, have indicated to the court that we do not believe that this is an appropriate way for us to determine this very crucial issue.

And therefore, before there is a permanent injunction in this matter, we would want to have eye witnesses and testimony from persons to go into the question as to whether in fact what has been alleged here in the affidavit form was correct.

Justice Felix Frankfurter: The case is here merely on a decree of a temporary injunction.

Mr. Robert L.carter: That's right, sir.

That's right.

Now, this was not done.

We of course -- we did not appeal and the State appealed and brought the matter here.

Now, there is nothing to show that the District Court if it had been apprised to the fact that this would -- there would be some question in respect to the validity of its order by virtue of the -- of the -- the -- of the State not being able to prove its case or to probe the issues, that the District Court would not have changed its practice and indicated if they had been -- this issue had been raised.

That they -- they should have -- would've been able to abort oral testimony.

Justice Felix Frankfurter: Mr. Carter, there's a -- does a corporate injunction automatically enter if this is affirmed?

Mr. Robert L.carter: If -- if this is affirmed, it would seem to me that if this is affirmed on a temporary -- in a temporary restraining order, a temporary injunction that the defendant still have the opportunity since they have appealed it on a temporary injunction to go back to the -- to the District Court and indicate before a permanent orders issued that we want to do what they say they now wish to do.

I don't think that they are precluded from that even if this judgment is affirmed at this time.

Now, I think that insofar as my own feeling is concerned that if we get to the merits of the case, that is on the membership list I saw it in facts, it seems to me that this case is controlled by the Alabama case and by the case from Little Rock.

So now, I think --

Justice William J. Brennan: If it is, then that -- that suggest the unconstitutionality on their face of both the statutes, doesn't it?

Mr. Robert L.carter: Well, we did not come here raising an issue or go in the court below raising the issue that these statutes were unconstitutional on the effect -- on their face, although I think they are.

We didn't raise it because what occurred was that we were concerned about the statute requiring us as an organization, to file a membership list and it's an impact on us.

And therefore, we asserted the unconstitutionality of the statute as it was applied to us.

Now -- so that the larger -- larger issue was -- as far as the -- both the State and we are concerned, I don't believe it's before the Court.

Justice William J. Brennan: Well, is this is why you suggest then the State if there were an affirmance here, might still have a final hearing?

Mr. Robert L.carter: Yes, sir.

Yes sir, because we have not gone to this, the -- the -- as I understand the judgment below, the judgment below does not hold that this statute -- that this 1924 law is just -- is -- is bad completely.

It holds that the law is bad insofar as it requires this organization to file membership list and that the 1958 law is bad insofar as it requires the organization to file the affidavit.

Now, we think that -- as I say I have a personal opinion.

The statute is unconstitutional on its face, but we did not raise it and I don't think it's the precedent before the Court.

Insofar as the 1958 law was passed, I -- is enacted -- in our judgment, this goes against all the rules of -- of due process.

The -- an individual, a member of the organization -- in a local organization, an officer is required to file an affidavit as to somebody else's act and he is punished if in fact what someone else has done over whom the State has no control, if he isn't indicated something that's incorrect.

Now, one final point and I only make this because the appellants have raised it in their brief on several occasions and Mr. Schuler raised it here.

There seems to be some feeling in the -- by the State that the 1924 Act could've been interpreted as applying to us as being applied to officers.

I like to point out to the Court that it doesn't seem to me unless the court below would require to rewrite the law, that it could pick and choose.

There is nothing in this Act.

The Act says that the membership -- a list of members and officers shall be filed.

The -- there's no separation here with respect to anything.

And what the District Court held was that the act could not be applied to the -- this organization.

Now, what -- what I gather, the State is apparently arguing is that the District Court could have rewritten the law and have therefore state the part of it and said that the law with -- could be required to apply to officers.

But I don't think that that can be done here unless the -- the District Court goes into the business of becoming the legislature.

So this -- for this reason, we submit that the judgment below is we think, correct and it should be affirmed.

Justice John M. Harlan: I'd like to ask you a question on this.

Were the depositions that are -- appear on the record, were they read before the District Court on the hearings of the temporary injunction?

Mr. Robert L.carter: They were submitted.

Justice John M. Harlan: So they were before the Court?

Mr. Robert L.carter: Oh yes, sir.

They were everything that's in this record here was before the Court.

They were before the Court, the depositions, the -- the affidavits and the depositions were before the Court.

Justice John M. Harlan: And there was no request by the State that further -- opportunity for further depositions should be taken?

Mr. Robert L.carter: No, sir.

And the matter was postponed.

I -- if I'm not mistaken at the State's request on -- on one or two occasions that there were no -- no additional requests to postpone the position of this -- asked by State.

Chief Justice Earl Warren: Mr. Schuler.

Mr. Culligan.

Argument of M.e.culligan

Mr. M.e.culligan: Mr. Chief Justice and Associate Justices.

And I'd to first, express the regret by our Attorney General for not being here today.

He just wasn't able to be here and he is one of the plaintiffs or defendants in both of these consolidated cases.

The -- person that I'd like to call the attention of the Court is that Act 2 of 1924 is not a dead letter statute and was never so considered in the State of Louisiana.

It has never been in a position of being an innocuous destitute since 1924 to date.

In 1950, in the State of Louisiana, all of our statutes were revised under legislative mandate by the Louisiana Law Institute which is our official body, the very good features of this statute, the deterring effect that it had and cause increase in tranquility in our State among everybody was so well recognized that it was put in back to the revised statutes under its present title of Title 12, Section 401 to 409.

Insofar as prosecutions under the statute, I know personally of no criminal prosecutions or I've been in the Attorney General's Office for 20 years.

I've never heard of any criminal prosecutions under this statute either of a member of the NAACP, the Ku Klux Klan, the St. Vincent de Paul or anybody else.

I do know as a matter of my own personal knowledge -- I may be going out of the record, but I'm only trying to answer and be informative to the Courts.

Of my own personal knowledge, every organization that came under the provisions of this Act in the City of New Orleans that ever called our office in New Orleans was well told to comply with the Act regardless of who they are.

NAACP, big brother fraternities at the colleges, current teachers' organizations, American Legion, veterans of farmers, everybody was told to comply with the Act.

Now --

Chief Justice Earl Warren: Have they generally complied?

Mr. M.e.culligan: Yes, up until these recent suits.

Now, I'll show you as is submitted in the brief of my honorable opponents.

They will show you that in 1950 on page 3 of their brief, their brief somewhat contradicts their own positions.

On page 5 of their brief, evidence disclosed in the 1950 and 1951, no organization had filed.

In 1952, 1953, 1954 and 1955, only a few filed.

Now again, Mr. Chief Justice, I think you asked this question and I'm answering it from their brief.

Approximately 1000 such lists were filed in 1956.

So there must have been 1000 organizations in our State that complied with 1956, 2000 in 1957, 1000 in 1958.

Now, the way the statute is written, you have to file this list no -- no earlier than December the 15th and no later than December the 31st, which accounts for that drop of 500 in 1959, because the whole year had not yet been completed and there was a no-necessity and no-requirement for a filing.

Some organizations do file late.

Now, again, reading from their own brief, "A total of 12 NAACP affiliates," and that's born out by the record, "filed a list of members with the Secretary of State in 1957."

That's after this suit was filed back on March 1st, 1956.

They're not scared of anything.

There's no fear of reprisals.

They're still filing lists, if Your Honors please.

They're basing this that the whole thing is on the fear of reprisals, a fear of prosecution.

There was no such fear in their minds at all.

All these came up after 1958, after the NAACP placed this Alabama case.

And also I think, Mr. Justice Frankfurter, asked the question as to whether there was any announcement.

You will find the affidavit of our present Attorney General on page 133 of the record that the petition is herein, any branches affiliated therewith, are the sole organizations in the entire State that have failed and refused to comply with the law after being advised that it was necessary to so do.

There was no contradiction in this record if that affirmed the positive statement of a public official who was supposed to be in his doing his duty.

There was absolutely no contradiction why affidavit or otherwise.

In addition, I think Mr. Justice Harlan asked a question if there was any reason given for what you might term a reactivation of this Act.

There could be plenty of reasons for that, if Your Honors please.

Right after the Brown case in Louisiana, there was plenty of talk.

That again is not in the record, but I'm only mentioning that in answer to the question that was prepotently to Mr. Schuler.

There was plenty of talk all over the State of the reactivation of the Ku Klux Klan.

That if you don't make the other points filed, why should we file?

Now, as a result of that when the Attorney General called on the Ku Klux Klan, there gained as you'll see from the affidavit of the Attorney General, went out of business.

And all we're trying to do in the statute is keep peace and tranquility.

We're not trying to do anything else.

We're not having the exposure of a member just for the sake of exposure.

I think our legislature is doing a proper thing.

I think out of the police power of our State, our legislature absolutely not only has the right but the duty to require all of these organizations to come out in the open and say who they are.

It is true that when they do that, it might have an adverse effect on certain of their membership.

There's no question about that.

I think in one of the decisions sometime ago, it has caused the attention, pardon, Your Honors, that in certain organizations men are very proud to show their membership, I belong to no fraternal orders and admire them all.

I've got a wonderful place and friends in the Masons and in the Knights of Columbus.

They wear their buttons on their lapel.

They are proud of their organization.

They are not afraid of reprisals.

I'm not afraid of my religion as a reprisal or my politics.

Chief Justice Earl Warren: But do they -- do they require them to --

Mr. M.e.culligan: Yes.

Chief Justice Earl Warren: It's true what you say but does every -- every --

Mr. M.e.culligan: You will find --

Chief Justice Earl Warren: -- Masonic Lodge, every -- every Knights of Columbus lodge to file under this?

Mr. M.e.culligan: No, sir.

I don't think they do because the Knights of Columbus generally are considered, although there is an opinion of the Attorney General back in 1926, if I remember correct, sir.

When the statute have first been passed on an inquiry filed by the St. Vincent de Paul organization, which is a charitable organization of the Catholic Church.

That they did tell the St. Vincent de Paul organization which was prior to my present working for the Attorney General, they told them that they had a file.

Now, whether the Masons and the Knights of Columbus have filed that they are not, I don't know, sir.

Because I've never examined the list of the particular organizations that they have filed, I wouldn't be able to tell you whether the -- the -- either the Knights of Columbus (Inaudible) or the different Masonic Lodges throughout our State have filed.

Chief Justice Earl Warren: Do labor unions file, Mr. Culligan?

Mr. M.e.culligan: No, sir.

They're exempted from the Act.

Chief Justice Earl Warren: They're exempted.

Mr. M.e.culligan: They're exempted from the Act because this only applies to fraternal, social and literary societies.

Chief Justice Earl Warren: I see.

In other words, it has nothing to do with the -- I'd say with either academic or political discussions.

The only type of registration we have in Louisiana on the politics is of course the standard registration as to whether you're a Republican, Democrat, or unaffiliated, in order to participate in party primers and the only other -- only other thing that I have to -- have my name displayed to the public is a member of the Bar Association.

I don't belong to any other organizations.

Now, insofar as the law is concerned in the case, I like to submit this.

That the finding of fact, getting back to the rules of the -- of the Eastern District of Louisiana or the practice I should say of the Eastern District of Louisiana, you will find that in the motion for the new trial, I think the very first paragraph, the motion for the new trial tells the Court -- we don't think -- we don't think that their evaluation of those affidavits was correct and we did ask for a new trial.

I don't know how else we could ask for it except by way of a motion for a new trial.

That in the light of the evidence introduced, both by the plaintiffs and the defendant, the court erroneously concluded that the members of the NAACP were intimidated or coerced economically or otherwise, as a result of their names being published as members of the NAACP.

Justice John M. Harlan: What page are you reading, counsel?

Mr. M.e.culligan: Page 183, sir of the motion for the new trial.

Chief Justice Earl Warren: Well do you -- do you particularly challenge the findings of the Court in your brief.

I noticed in the index that there are three subheadings.

I don't see it under any of the -- those.

I noticed that you do show some of the evidence of the State in there, but do you directly challenge the findings of the District Court?

Mr. M.e.culligan: Of the fact, yes.

Chief Justice Earl Warren: You do.

Mr. M.e.culligan: But that I don't say it directly in the brief.

Chief Justice Earl Warren: I beg your pardon?

Mr. M.e.culligan: I just don't say it directly in the brief.

If we admitted to the findings sir, we couldn't be even in this Court.

Chief Justice Earl Warren: No, but you're --

Mr. M.e.culligan: There was no way in the world that after this affidavit is filed by NAACP stating that there was a drop in membership.

Without the membership list which is the whole crux of this whole lawsuit.

Without the membership list, how could we deny it?

We don't know, there's no way us -- for us knowing and they refused to give it to us.

So it would be a useless, a vain and useless proposition to try to do anything about that.

Justice Felix Frankfurter: On the other hand -- on the other hand, how are they to establish discrimination or coercive consequences for the importance of this Act and against them, except by allegations and human testimony?

Mr. M.e.culligan: That's right, sir.

In the same way, we -- we're in the same situation.

Justice Felix Frankfurter: And now -- and -- and if -- if their claim is well founded, then you of course, wouldn't require them to obey the law which they say operates coercively against them by making the very disclosures would bring -- which would bring about those consequences.

Mr. M.e.culligan: We say that our evidence, just I showed, that it was not used coercively against them.

It applies equally and has been applied equally to everybody's -- it's had the same situation in the State of Louisiana.

Justice Felix Frankfurter: Well, but that presupposes that -- that the situation as to all organizations is the same in the feeling and the attitudes and the relationships of everybody in Louisiana, doesn't it?

Mr. M.e.culligan: Yes, that it --

Justice Felix Frankfurter: Well -- well, can you say that?

Can you say that people feel the same way throughout every group of people?

Mr. M.e.culligan: I would say that certain groups feel that way about certain other groups.

Yes sir, even racial groups and political groups and religious groups.

In our State, we haven't formed even geographical groups.

In other words, I don't like to make personal references, but when I'm out in a country parish, I don't like to say I'm from the parish of Orleans.

I say my wife is from St.Gabriel, Louisiana because I would not be probably accepted near as well.

Now, that's just maybe a place in a little local prejudices but that is absolutely a fact.

Justice Felix Frankfurter: But there may be a difference in the kind of publicity of exploitations of different biases or inclinations.

Mr. M.e.culligan: Yes, sir.

That's possible in all -- all types of human endeavor.

Justice Felix Frankfurter: Well, on that concept that some other organizations might not make out of the case.

If then, Mr. Schuler and I -- suppose you agree, it is relevant -- it is a relevant issue or a factor in the ultimate issue that a particular of the enforcement of a particular law operates with unfair adversity against the particular group.

That may happen in the community, may it not?

Mr. M.e.culligan: It could be.

Justice Felix Frankfurter: So that you can't say -- I think there was a Frenchman who said, "There's no greater inequality than the equality of unequals."

Mr. M.e.culligan: Yes, but I say that their very argument, sir, is answered in their own brief.

Justice Felix Frankfurter: What was that answer?

Mr. M.e.culligan: By saying that in 1956, right after this suit was filed, they had so many members.

It almost doubled right in the City of New Orleans where it was given page after page on the front pages of publicity.

It doubled in 1957.

Justice Felix Frankfurter: Well, maybe there's an -- accession of great courage during that particular period.

Mr. M.e.culligan: Well, maybe that's what the NAACP stands for.

It maybe a national --

Justice Felix Frankfurter: Well, but -- but the --

Mr. M.e.culligan: -- association for courageous people.

Justice Felix Frankfurter: But -- but the first (Inaudible) [Laughter] --

Mr. M.e.culligan: It might be for cowardly people too.

Justice Felix Frankfurter: But the per curiam says the opposite.

Mr. M.e.culligan: Yes, sir.

I can say it -- it's debatable point, yes, sir.

Justice Felix Frankfurter: Pardon me?

Mr. M.e.culligan: It's strictly a debatable point, yes sir.

Justice Felix Frankfurter: And what are we to do in the per curiam when there come three judges make this kind of a finding except -- except in the way in which I've indicated to Mr. Schuler that you say it was unfair to be not to be able to disprove the basis on which they operated.

Mr. M.e.culligan: Well, I think that this Court has pledged right that this is an erroneous finding of fact to overrule the District Court.

Justice Felix Frankfurter: Oh, yes.

It has that, but in order --

Mr. M.e.culligan: And we're saying that --

Justice Felix Frankfurter: -- to find that it's erroneous, we must go to the record.

Mr. M.e.culligan: Yes, and --

Justice Felix Frankfurter: The record doesn't show it.

Mr. M.e.culligan: And that's why we're saying that.

We -- we say that the record does show that it's an erroneous finding of fact.

Justice Felix Frankfurter: Well now, specifically, would you be good enough to -- to point out where the statement in this per curiam that the total membership in Louisiana has declined from 13,000 to 6000 is contradicted in the record.

Mr. M.e.culligan: We couldn't do it sir, because we don't have a list of the membership, so we have no knowledge.

Justice Felix Frankfurter: To which I suggest that you were asking them to produce the very thing which they claim, if they did produce, would make the offense of which they complained.

Mr. M.e.culligan: That's coercible, but f they put handcuffs on me, I can't -- I can't use my hands.

And they've got the handcuffs on me the minute that they filed a suit by refusing to get a membership list.

Justice Felix Frankfurter: And what is your answer to that dilemma, while this case has been (Inaudible)?

Mr. M.e.culligan: I don't know, sir.

Frankly, that's why I am here today.

I'm trying to find the answer.

Chief Justice Earl Warren: Well --

Mr. M.e.culligan: If we knew the answer --

Chief Justice Earl Warren: -- let's assume instead --

Mr. M.e.culligan: -- we'd certainly comply --

Chief Justice Earl Warren: -- on the other --

Mr. M.e.culligan: -- and try to help out to keep peace and tranquility in our State any manner, shape or form that we can do it.

That's all we are here for and nothing else.

Chief Justice Earl Warren: Well, isn't the shoe on the other foot when they are unable to find out whether there has even been any prosecution against anyone ever in the State under this Act when your -- when your Secretary of State certifies that -- that he cannot produce any such information?

Mr. M.e.culligan: Well, if those raised, were not be with the Secretary of State, sir.

In other words, we have 64 parishes in the State.

Chief Justice Earl Warren: Yes, I know.

But it's the Attorney General's Office and he was in charge of the litigation.

Mr. M.e.culligan: Sir?

Chief Justice Earl Warren: It -- the Attorney General was in charge of the litigation, wasn't he?

Mr. M.e.culligan: Yes.

Chief Justice Earl Warren: And he was the one who'd brought it, then --

Mr. M.e.culligan: The Attorney --

Chief Justice Earl Warren: -- then he could've testified if there had been any.

Do you know if there has been any other --

Mr. M.e.culligan: I'm telling you as far as I know, sir.

There has never been a criminal prosecution, nor do I know of any civil suit or civil prosecution that's ever been filed other than these particular cases --

Chief Justice Earl Warren: Yes.

Mr. M.e.culligan: -- which involved the NAACP.

Chief Justice Earl Warren: Yes.

Mr. M.e.culligan: That the other organizations as is shown by the affidavit of the Attorney General, whenever requested to do so, they did it.

So there was nobody else to file the suit against.

That's the only answer I can make to that, sir.

Chief Justice Earl Warren: Fair enough.

Mr. M.e.culligan: I appreciate being here today.

And if I said anything that might minimize the shape or form to offend Your Honors, I apologize.

Chief Justice Earl Warren: You have not, sir.